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Archive for the ‘Social Media Sites’ Category

Around the Block (March 10, 2011): EU Privacy laws rankle web-site owners, and Howrey’s possible dissolution caused by E-Discovery Vendors?

Posted by rjbiii on March 10, 2011

Web Operators inside the UK are complaining that E.U. Privacy directives are putting them at a competitive disadvantage. The Government’s Information Commissioner has stated that “explicit consent” must be given by users before sites can place cookies that “track” their activities on their computers. From the Article:

The reaction [to privacy laws] from start ups has been strong and angry. Nick Halstead, CEO of U.K. start up Mediasift, behind the very popular Tweetmeme service, has been vociferous in his condemnation.

“If users are presented with a pop up every time a cookie is going to be set, they are simply going to go to sites outside of Europe that are not hampered in the same way. It will put us at a major disadvantage compared to American sites.

“On our site, if you re-tweet we set a cookie. That cookie remembers other stories you have re-tweeted. Now that should be a useful thing for users. But you could say that is tracking them.”

Mr. Halstead called on governments to tread very lightly…

See a brilliant interactive demo of what the user experience might look like here.

In the chaos now hovering at Howrey, apparently one party being blamed for the firm’s collapse is E-Discovery Vendors. The quote that got my attention:

Another challenge was the rise of third-party document-discovery specialists that could provide litigation support services at substantially lower rates, he said. Howrey, a law firm with many offices in big cities, and thus, higher costs and couldn’t compete, he added.

Perhaps the problem wasn’t competition, but scope creep on the part of the firm. Lawyers should practice law, and manage the process of e-discovery. Competing with technology firms in a technology field when it isn’t a “core business” is a bad idea. The complaint is that vendors were more efficient than was Howrey at processing data. The firm was, therefore, unable to charge above-market prices for its EDD services, and apparently, this was a vital revenue stream for them. My opinion is that the “law firm as technology vendor” model doesn’t work. Howrey is exhibit A.

Leita Walker and Joel Schroeder pen an article on how to locate and use evidence from social media sites. In, Making Your Case with Social Media, they write:

[I]t’s never too early to start poking around. As soon as counsel contemplates suing or believes their client may be sued, they should investigate their opponent’s online presence. Once litigation commences, litigants may restrict their privacy settings — or remove the sites altogether — making it much more difficult to readily access potentially game-changing evidence.

Of course, once discovery commences, lawyers can employ more formal methods of fact-gathering and move to compel that evidence if met with opposition. Interrogatories should seek to identify an opponent’s screen names and relevant social media usage. Requests for production should seek blog entries and social media posts, and requests for admission should be designed to authenticate such information. In addition, counsel should be prepared to talk about social media and its production format at a Rule 26(f) or other discovery conferences.

Finally, before offering such evidence in court, counsel should be prepared to respond to objections related to relevance, hearsay, and authentication. With regard to the latter, the threshold for admissibility is low, and can be satisfied by the testimony of a witness who has personal knowledge that the evidence is what it purports to be. In fact, courts have held that website printouts need not be authenticated by the site’s owner but can be authenticated, for example, by an attorney who testifies that she visited a particular site, recognized it as the opposing party’s, and printed what she saw on the screen. Jarritos, Inc. v. Los Jarritos (2007).

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Posted in Articles, Authentication, International Issues, Privacy, Social Media Sites | Tagged: | Leave a Comment »

Around the block-March 8, 2011: Notes on Facebook and Predictive Coding

Posted by rjbiii on March 8, 2011

A few articles of note that affect electronic discovery, forensics, or cyber-security:

Predictive coding has been a hot topic, and at Prism Legal, Ron Friedman posts his thoughts on how it should be handled by courts:

[Courts] should presume that predictive coding is reliable. The burden of proof should shift to predictive coding opponents to show that it is not reliable.” Let the proponents of human review explain to the court why diverging expert views is better than consistent computers.

Agreed. “Relevance” is ultimately determined by the court. In “human review,” a lead attorney formulates a set of guidelines for document reviewers to follow. This formulation is based on his understanding of the case subject matter, the scope of discovery requests or other communications by the opposing party, and any direction he might receive from the court. The attorney’s understanding of relevance is, in theory, based on an honest attempt to obtain an understanding of the court’s definition of “relevance” for the instant matter. The guidelines then sent down to those attorneys reviewing documents is an attempt to accurately propagate this understanding. Obtaining consistency (and of course, accuracy, to the extent that term can be used here) between reviewers is a difficult (and often, costly) process requiring diligence and proper project management.

The larger the review team, the greater the challenge. Predictive coding offers the promise of greater consistency. To test its validity, however, the components that might be scrutinized are: the efficacy of the technology used, any “rules” created that affect the tool’s method of classification, and the methodologies behind any creating “sample” datasets used to “train” the tool on what is relevant and what is not.

EDiscovery map offers a primer in how to collect from EU-based data sources.

There is a serious conflict for US firms with affiliates in EEA countries, when they get involved in civil litigation within the US: On the one hand, Federal and State rules mandate retention and production of all relevant data, even data located outside of the US, with the risk of severe penalties by the Courts in case of “spoliation”, and on the other hand, EU data protection laws (applicable to the EEA) mandate very strict data protection rules for “personal data” of their residents, that seriously restricts processing of personal data and transfer of those data to “non-adequate” countries outside of the EEA, with risks of steep fines in case of transgression.

Continuing on, we’ve argued about this before, but the ABA posts an article explaining why e-discovery is killing legal jobs. Not that I agree with the assessment.

The ACEDS staff takes on the subject of EDD and social media:

One of the important issues involved in social networking evidence is admissibility. The Federal Rules of Evidence require evidence to be authenticated before it can be admitted in court. With nearly everyone having the power to create accounts and claim to be someone else, how can one prove the true identity of a username in court?

To help establish authenticity of information gathered from social media sites and intended for use as evidence, testimony from the person who obtains printed screenshots from the social networking web page should be documented, along with details of how and when the pages were accessed and printed.

I agree with this…but I’m not sure how authentication of social media content differs from that associated with the collection of any other website. On the same topic, we now read of Facebook’s “self-collection” tool, which the company has provided its users:

Now, 500 million users of the most popular social network on the planet (which includes not just individuals, but organizations as well) have a mechanism to “self-collect” their data for their own use and safekeeping. Or, they can “self-collect” for use in litigation. In his article, Craig [Ball] likens Facebook’s download function to Staples’ famous easy button. How can an attorney argue an overly burdensome collection when you simply have to click a button?

Discovery requests for Facebook-related data may become ever more prevalent, if you believe Andre Yee when he says that Facebook is the new internet.

Posted in Articles, International Issues, Social Media Sites, Trends | Tagged: , , | Leave a Comment »

Social Media: Careful while Handling

Posted by rjbiii on August 17, 2009

From Michigan comes an article that warns about the evidentiary value of data posted to social media sites. The bottom line quote:

“Don’t put anything on a social network page, blog, Web site or in an email,” he said, “that you don’t want printed on the front page of the newspaper.”

Although you’ve heard it before…you’ll hear it again here.

Posted in Articles, Social Media Sites, Trends | Leave a Comment »